State of Minnesota, Respondent, vs. Edward Ray Atwater, Appellant.

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This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

  STATE OF MINNESOTA

IN COURT OF APPEALS

C1-02-999

 

State of Minnesota,
Respondent,

vs.

Edward Ray Atwater,
Appellant.

 

Filed July 1, 2003 Affirmed

Peterson, Judge

 

Crow Wing County District Court

File No. K101586

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and

 

Donald F. Ryan, Crow Wing County Attorney, 326 Laurel Street, Brainerd, MN  56401 (for respondent)

 

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this appeal from a conviction of and sentence for first-degree controlled-substance crime, appellant Edward Ray Atwater argues that (1) a trailer on his land was a residence, and, therefore, a police officer who approached the trailer and peered inside conducted an illegal search because the officer was standing in the curtilage of the residence; (2) the affidavit supporting the search-warrant application did not establish an informant's credibility, and, therefore, probable cause to issue the warrant was lacking; and (3) the district court erred in sentencing him under Minn. Stat. § 609.11 because the firearms found in his apartment did not increase the risk of violence in the drug offense.  We affirm.

FACTS

            On March 7, 2001, Marvin Hanson was arrested for possession of methamphetamine and turned over to federal authorities.  On March 13, 2001, Assistant United States Attorney Joseph Walbran contacted Thomas Wyatt, a special agent for the Minnesota Bureau of Criminal Apprehension (BCA), and reported that shortly before his sentencing hearing on other charges, Hanson offered to provide information.

            Hanson provided the following information:  on March 7, 2001, Hanson met with Atwater in Emily, Minnesota, and purchased from him about two and one-quarter ounces of methamphetamine for $4,500; Atwater was a bartender at the Log Cabin bar in Emily and lived in the only apartment above the bar; Atwater owned a 20-acre parcel of land and on it was a green trailer house to the right of the driveway and a shed to the left; specific directions to Atwater's property; Atwater manufactured methamphetamine in the trailer and stored chemicals in the shed; and on March 7, 2001, Atwater manufactured methamphetamine in his apartment because there was too much snow to do it at the trailer.

            Wyatt confirmed that Atwater lived in the only apartment above the Log Cabin bar, worked part time as a bartender at the Log Cabin bar, and owned a 20-acre parcel of property located at 41275 East Birch Lane, Emily.  Wyatt went to Atwater's Birch Lane property and walked up the driveway.  He saw a green travel trailer on the right side of the driveway and a smaller trailer with an add-on porch on the left side.  The property's layout exactly matched the description given by Hanson.  Wyatt knocked on the door to the green trailer but got no answer.

            Wyatt walked over to the smaller trailer, which had a partially open door and no window coverings.  Through the front window, Wyatt saw a five-gallon can of toluene on the floor, several glass jars on the floor next to the toluene can, and several one-gallon containers, one of which was labeled as a paint thinner.

            At that time, Wyatt had assisted in seizures of more than 12 clandestine methamphetamine labs.  Based on his training and experience, Wyatt knew that toluene is a solvent commonly used in large quantities in the methamphetamine-manufacturing process and that toluene is commonly mixed with other chemicals in various types of glass containers when manufacturing methamphetamine.  Toluene is legitimately used by professional painters to clean paint sprayers and can also be used to thin paints, but Wyatt saw no paint cans or supplies and noted that none of the buildings or trailers on Atwater's property had been painted or appeared likely to be painted.  Moreover, Wyatt believed that the quantity of toluene in the trailer was inconsistent with its legitimate use and consistent with its use in the methamphetamine-manufacturing process.

            In the smaller trailer, Wyatt also saw an open box of milk filters, a funnel, and additional glassware on a counter above the toluene container and glass jars.  Based on his training and experience, Wyatt knew that during the methamphetamine-manufacturing process, various chemicals and solutions are commonly filtered to extract specific ingredients and that coffee filters, strainers, and funnels are commonly used for the filtering process.  Wyatt went to the farm section of a local store and checked on milk filters.  Wyatt learned that milk filters are similar to coffee filters in consistency and are used when milking cows.  Atwater's property was not a farm, and Wyatt did not see any cows there.  Based on what he learned about milk filters and his observations, including the location of the milk filters in the trailer, Wyatt opined that the filters were intended to be used in the methamphetamine-manufacturing process.

             Wyatt also stated that the quantity and type of glassware and the collection of items in the trailer were consistent with the existence of a methamphetamine-manufacturing process.

            Based on the above-stated facts, the district court issued warrants to search Atwater's apartment and his Birch Lane property.  From the apartment and the trailers on the Birch Lane property, officers seized substances containing methamphetamine and numerous items associated with the methamphetamine-manufacturing process.  In the bedroom of Atwater's apartment, officers found an uncased shotgun, with one round in the chamber and one round in the magazine.

            The district court denied Atwater's motion to suppress evidence discovered during the searches and statements he made to police after the search warrant was executed.  A jury found Atwater guilty of one count of first-degree controlled-substance crime in violation of Minn. Stat. § 152.021, subds. 2a, 3(a) (2000) (manufacturing methamphetamine), and one count of first-degree controlled-substance crime in violation of Minn. Stat. § 152.021, subds. 2(1), 3(a) (2000) (possession of a mixture weighing 25 grams or more containing methamphetamine).

The district court sentenced Atwater to 86 months in prison, the presumptive term for a person with a zero criminal-history score who commits a severity-level VIII offense.  Minn. Sent. Guidelines IV, V (2000).  In sentencing Atwater, the district court found that he possessed firearms at the time of the offense.  Although the finding did not affect the disposition or duration of Atwater's sentence, it could potentially have collateral consequences.

D E C I S I O N

1.            Atwater argues that the warrants to search his apartment and the Birch Lane property were not supported by probable cause.  When reviewing pretrial suppression rulings, this court "may independently review the facts and determine, as a matter of law, whether the district court erred in suppressingor not suppressingthe evidence."  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999) (citation omitted).  This court accepts the district court's findings of fact unless they are clearly erroneous.  State v. George, 557 N.W.2d 575, 578 (Minn. 1997).

            This court gives deference to the magistrate's determination of probable cause.  State v. Albrecht, 465 N.W.2d 107, 109 (Minn. App. 1991).  A totality-of-the-circumstances test is applied to determine whether probable cause exists to issue a search warrant.  Illinois v. Gates, 462 U.S. 213, 238-39, 103 S. Ct. 2317, 2332 (1983).

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

 

Id. at 238, 103 S. Ct. at 2332; see also Albrecht, 465 N.W.2d at 108 (applying same test in interpreting Minnesota constitution).

            Atwater argues that Wyatt's observation through the window of the white trailer was an unconstitutional search.  Under the derivative-evidence rule, a search that violates a defendant's constitutional rights cannot be used to support a finding of probable cause to issue a search warrant for the defendant's property.  State v. Lieder, 449 N.W.2d 485, 488 (Minn. App. 1989).

[I]n order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.

 

State v. Krenz, 634 N.W.2d 231, 234 (Minn. App. 2001) (quoting Minnesota v. Carter, 525 U.S. 83, 88, 119 S. Ct. 469, 472 (1998) (quotation omitted)).

            Atwater argues that he had a reasonable expectation of privacy in the trailers and the area surrounding them.  Fourth Amendment

protections against unreasonable search and seizures extend to the curtilage of a home.  Though the term "curtilage" defies precise definition, it has been referred to as the "area to which extends the intimate activity associated with the sanctity of a man's home and the privacies of life."

 

State v. Sorenson, 441 N.W.2d 455, 458 (Minn. 1989) (citation and quotation omitted).  Four factors are considered in determining whether an area is within a curtilage:

the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.

 

State v. Krech, 403 N.W.2d 634, 636-37 (Minn. 1987) (quoting United States v. Dunn, 480 U.S. 294, 301, 107 S. Ct. 1134, 1139 (1987)) (other citations omitted).

If police or other law enforcement officers enter land which is found to be an open field, then the existence of probable cause is irrelevant and unnecessary.  A determination that a search or seizure falls within the open-fields doctrine negates a defendant's right to complain of the police conduct.

 

Sorenson, 441 N.W.2d at 458 (citation omitted).  A "defendant bears the burden of establishing a violation of his personal Fourth Amendment rights."  State v. Reynolds, 578 N.W.2d 762, 764 (Minn. App. 1998) (citations omitted).

            Although Atwater argues that the Birch Lane property should be treated as his residence, the record shows that he lived in the apartment above the Log Cabin bar.  Nonetheless, to the extent Atwater used the property for vacation or recreational purposes, it is consistent with Minnesota law to recognize that he had a reasonable expectation of privacy in the structure used for eating, sleeping, and other such activities and in its curtilage.  See State v. Larsen, 650 N.W.2d 144, 149 (Minn. 2002) (recognizing reasonable expectation of privacy in fish house); Sorenson, 441 N.W.2d at 458 (considering without deciding whether area was within curtilage of hunting camp).

            The evidence shows that the green trailer was used for personal activities and that the white trailer was used as a storage shed.  The record does not show the distance between the two trailers.  But they were on opposite sides of the driveway, and there is no evidence of any enclosure surrounding the two trailers.  The record does not show that Atwater took steps to protect the white trailer from observation.  To the contrary, Wyatt stated that the door to the white trailer was partially open, and its windows had no coverings.

            Atwater has not met his burden of proving that Wyatt was within the curtilage when he observed the items in the white trailer.  Therefore, Wyatt did not violate Atwater's Fourth Amendment rights by making the observations that he did.  See Dunn, 480 U.S. at 302-304, 107 S. Ct. at 1140-1141 (holding that no constitutional violation occurred when officers looked inside of a barn and observed a phenylacetone laboratory because the barn was outside the curtilage of the defendant's residence; the barn was located about 60 yards from the house, was outside of a fence surrounding the house, was not being used for activities associated with the home, and was not protected from observation).

            In a pro se supplemental brief, Atwater argues that Wyatt's observation through the window of the white trailer violated his constitutional rights because there was a locked gate and "no trespassing" signs at the entrance to the Birch Lane property.  That evidence was not presented at the omnibus hearing but at trial, and there was conflicting evidence about the existence of the gate.  Because the issue was not presented to the district court, we will not address it on appeal.  See State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980) (stating that failure to object to issue at trial generally means party has waived his right to raise the issue on appeal).

Atwater next contends that Wyatt's affidavit did not establish the informant's reliability or veracity, and, therefore, probable cause to issue the search warrant was lacking.

When police rely on information provided by an informant, all of the stated facts relating to the informer should be considered in making a totality-of-the-circumstances analysis.  Police may rely on an informant's tip if the tip has sufficient indicia of reliability.  When assessing reliability, courts examine the credibility of the informant and the basis of the informant's knowledge in light of all the circumstances.

 

State v. Cook, 610 N.W.2d 664, 667 (Minn. App. 2000) (quotation and citations omitted), review denied (Minn. Jul. 25, 2000).

An informant's reliability may be established by sufficient police corroboration of the information supplied, and corroboration of even minor details can "lend credence" to the informant's information where the police know the identity of the informant.

 

State v. Ward, 580 N.W.2d 67, 71 (Minn. App. 1998) (citation omitted).

            At the Birch Lane property, Wyatt observed that the property's layout exactly matched the informant's description and that the white trailer contained numerous items associated with the methamphetamine-manufacturing process.  Wyatt's observations provided sufficient corroboration of the information provided by the informant to establish the informant's reliability.  See State v. Lozar, 458 N.W.2d 434, 440 (Minn. App. 1990) (concluding that police corroboration of informant's detailed description of defendants' property and buildings lent sufficient credence to informant's tip), review denied (Minn. Sept. 28, 1990).

            The district court did not err in determining that probable cause existed to issue the warrants to search Atwater's apartment and his Birch Lane property.

2.         The firearms-enhancement provision of the mandatory-minimum sentencing statute states in relevant part that

any defendant convicted of an offense * * * in which the defendant or an accomplice, at the time of the offense, had in possession or used, whether by brandishing, displaying, threatening with, or otherwise employing, a firearm, shall be committed to the commissioner of corrections for not less than three years.

 

Minn. Stat. § 609.11, subd. 5(a) (2000).

            The mandatory-minimum sentencing provisions of Minn. Stat. § 609.11 apply to cases of constructive possession where the district court finds that the weapon's presence increased the risk of violence.  State v. Royster, 590 N.W.2d 82, 85 (Minn. 1999).  A person "has constructive possession of a firearm if he consciously exercises dominion and control over it."  Salcido-Perez v. State, 615 N.W.2d 846, 848 (Minn. App. 2000) (citation omitted), review denied (Minn. Sept. 13, 2000).  Factors to consider in determining whether a firearm increased the risk of violence of a controlled-substance offense include

the nature, type and condition of the firearm, its ownership, whether it was loaded, its ease of accessibility, its proximity to the drugs, why the firearm was present and whether the nature of the predicate offense is frequently or typically accompanied by use of a firearm.

 

Royster, 590 N.W.2d at 85.  "The district court determines whether the firearm-enhancement requirements have been met by a preponderance of the evidence," and this court will affirm the district court's decision if it is supported by the totality of the circumstances.  Salcido-Perez, 615 N.W.2d at 848-49 (citation omitted).

            Atwater admitted owning the uncased and loaded shotgun found in the bedroom of his apartment.  The shotgun was near the bedroom door, making it easily accessible.  Having it loaded increased the risk of violence.  Most of the methamphetamine lab was located in the bedroom, so the shotgun was in close proximity to the drugs.  Whether to accept Atwater's testimony that he used the firearms for hunting was a credibility issue for the district court to determine.  See Royster, 590 N.W.2d at 83, 85 (affirming application of firearm-enhancement provision when appellant claimed that a loaded revolver had been given to him by his father for protection because he lived in a dangerous neighborhood).  The totality of the circumstances supports the district court's decision to apply Minn. Stat. § 609.11, subd. 5(a).  See Salcido-Perez, 615 N.W.2d at 848 (stating that "it is difficult to imagine any purpose, other than violence, for an individual * * * to keep a loaded pistol in his kitchen").

3.         In his pro se supplemental brief, Atwater argues that he received ineffective assistance of counsel.  Appellate courts must apply a two-part test when considering a claim of ineffective assistance of counsel.  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987).  Under this test,

[t]he defendant must affirmatively prove that his counsel's representation "fell below an objective standard of reasonableness" and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."

 

Id. (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).  A reasonable probability is one that is sufficient to undermine confidence in the outcome.  Id.

            Atwater argues that counsel was ineffective in not aggressively pursuing his Fourth Amendment claim.  Because probable cause existed to issue the search warrants, more aggressive advocacy would not have changed the outcome of the suppression motion.  See State v. Grover, 402 N.W.2d 163, 166 (Minn. App. 1987) (denying ineffective-assistance-of-counsel claim and holding that even if failure to request evidentiary hearing was error in judgment, it must be apparent that the result would have been different if counsel had contested warrant or arrest); see also State v. Johnson, 324 N.W.2d 199, 202 (Minn. 1982) (denying ineffective-assistance-of-counsel claim because "it would not have done defense counsel any good to challenge the warrantless search").

            Atwater also contends that defense counsel should have raised a Fifth Amendment challenge to Wyatt's conduct.  The district court addressed the issue of whether Wyatt interrogated Atwater by asking if he had any questions before reading him his Miranda rights.  The district court found that the question was not likely to elicit an incriminating response and, therefore, did not violate Atwater's constitutional rights.  Atwater cites no authority showing that the district court's determination was error.

            Atwater argues that his first attorney conducted insufficient investigation and failed to contact witnesses and that his second attorney was inadequately prepared for trial.  The evidence in the record is insufficient to prove these allegations and, therefore, insufficient to prove ineffective assistance on those grounds.  See State v. Bock, 490 N.W.2d 116, 123 (Minn. App. 1992) (holding that mere allegations that counsel initiated very little contact with defendant prior to trial, failed to keep him apprised of pretrial preparation and made very few attempts to talk to any witnesses failed to reach the level of proof necessary to show ineffective assistance), review denied (Minn. Aug. 27, 1992).

            Finally, Atwater disputes the credibility of the testimony, reports, and statements of Wyatt and Sergeant Thomas D. Ploof.  Witness credibility and the weight of the evidence are issues for the fact-finder to decide.  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).

            Affirmed.